Opinion
January Term, 1930.
William Lamkay, for the appellant.
Bernard R. Schulman, for the respondent.
The judgments in the actions by the passengers against the plaintiff and the defendant in the instant case, who were parties defendant in the former actions, are not admissible as evidence in this action, and the judgments are not res judicata as to the issues involved in the instant suit. While in the action by the passengers the parties here were sued as joint tort feasors, the issues involved were between the plaintiffs in those actions and each of the defendants. In those actions there were neither pleadings nor issues litigated as between the two defendants. The judgments in those actions did not determine as between the plaintiff and the defendant in this action the negligence of the latter and the freedom of negligence of the former. Such issues were neither presented nor litigated. Neither of the plaintiffs in the former actions is a party to the present action, and the questions litigated in each of those actions was the negligence of either or both the defendants toward the plaintiff. There was not involved the issue as to the negligence of either defendant toward the other. They were not obligated on the former trials to establish their claims as against one another. ( Self v. International Ry. Co., 224 A.D. 238.) The possibility that in this action a result may be obtained which will be inconsistent with the judgments in the former actions has no bearing upon the question involved. ( St. John v. Fowler, 229 N.Y. 270.)
Order unanimously reversed, upon the law, with ten dollars costs to the appellant, and motion denied, with ten dollars costs.
All concur; present, CROPSEY, MacCRATE and LEWIS, JJ.